Six weeks prior to their May 3 antitrust bench trial in the Northern District of California, plaintiff Epic Games and defendant Apple submitted their tentative witness lists (this post continues below the two documents):
21-03-19 Epic Games witness... by Florian Mueller
21-03-19 Apple Witness List by Florian Mueller
As expected, Apple CEO Tim Cook and Apple Fellow (and App Store chief, as well as former marketing chief) Phil Schiller will testify extensively, as will, of course, Epic CEO Tim Sweeney.
Among the parties' expert witnesses I'm particularly interested to hear what Stanford Professor Susan Athey (with her combined background in economics, mathematics, and computer science) will say.
There will also be witnesses from major tech companies that are not parties to this case, such as Facebook, Microsoft, and Nvidia. Some of them are known to be (very) critical of Apple's App Store terms and policies.
The industry at large, with every respect for Apple's and Google's success, believes it's high time for decisions that open up the market. A few days ago, one of the opinion leaders of Silicon Valley's venture investment community, Benchmark Capital's Bill Gurley, wrote the following on Twitter:
When two parties move price 100% in concert with each other, it is definitive "proof" of a hard two-party oligopoly and lack of market competition. This should invite MORE regulatory consideration, not less. https://t.co/VhsHNVcx8h
— Bill Gurley (@bgurley) March 16, 2021
Whether Android is a competitive constraint on Apple's App Store will probably come up as well. I'd like to add something here to my recent post, Apple may already have lost the strategic battle over antitrust market definition in multiple European jurisdictions: App Store monopoly. Even though the French competition authority (Autorité de la concurrence) denied a group of complaints a preliminary injunction against Apple over its new ad tracking (IDFA) rules because the ultimate decision-makers prioritized data privacy considerations over fair competition, it found that there likely is a distinct market for iOS apps (in which Apple has a monopoly, obviously):
This ruling has another aspect: #antitrust market definition. The preliminary opinion that there likely IS a distinct market for #iOS apps bodes well for an important group of non-parties to this particular case: app developers like @EpicNewsroom and @Spotify @appfairness
— Florian Mueller (@FOSSpatents) March 17, 2021
In Russia, a court hearing on Apple's appeal of a regulatory decision (regarding the rejection of apps) was postponed on short notice. At some point, Apple apparently threatened to exit the Russian market because of a law requiring the pre-installation of apps determined by the Russian government, but is now going to keep serving that market. Apple used to be adamant about not pre-installing apps chosen by someone other than Apple. It remains to be seen whether the new legislative framework moots the antitrust case. In any event, those developments in Russia show that the App Store monopoly can be broken--and Epic's case in the United States District Court for the Northern District of California has that potential, too.
Share with other professionals via LinkedIn:
